is not either expressly alleged or by necessary implication included in what is alleged, must be presumed against him. The court, however, will construe the words of the pleading according to their ordinary and usual acceptation, and technical terms according to their technical meaning. And if the sense of a word be ambiguous in the ordinary acceptation of it, it shall be construed according as the context and subject matter require it to be, in order to render the whole consistent. and sensible: thus, the word "until" may be construed inclusive or exclusive of the day to which it is applied, according to the context and subject matter. 5 East, 244. In R. v. Bigg, 1 Str. 18. 3 P. Wms. 419, the defendant was indicted for erasing the indorsement of a bank note, and it appeared that the words erased were on the face of the note, but the jury found that such was commonly called an indorsement; and a majority of the judges held that the description was correct. In indictments against officers for neglect of duty or malversations in their offices, it is sufficient to allege that they were such officers at the time of the offence committed, without shewing their appointment; See 5 T. R. 623; for their regular appointment is presumed from their exercising the duties of their offices. If it be stated that the Justices of our Lord the King were assigned by letters patent under "his seal of Great Britain," it shall be presumed to be the great seal, 4 T. R. 521, for it could not be by any other.

Mere matter of inducement, however, does not require so much certainty as the statement of the gist of the offence. 1 Vent. 170. Com. Dig. Indictment, G. 5. So, where the offence cannot be stated with complete certainty, it is sufficient to state it with such certainty as it is capable of. As in the case of a conspiracy to defraud a person of goods, it is not necessary to describe the goods, as in an indictment for stealing them; stating them as "divers goods" has been holden sufficient. 1 Chit. Rep. 698. So, in an indictment for soliciting and inciting another to commit an offence, it is not necessary to state the offence contemplated, with the same degree of certainty as in an indictment for the offence itself, even, it should seem, although the offence were afterwards actually. committed. In indictments for perjury, also, the certainty formerly required, according to the rules above mentioned, is now no longer necessary; by stat. 23 G. 2. c. 11, it is necessary only to state the substance of the offence, and in what court or before whom the oath was taken (averring such court or person to have competent authority to administer the same), together with the proper averments to falsify the matter wherein the perjury is assigned, without setting out the bill, answer, &c. or any part of a record or proceeding in law or equity, other than as aforesaid, and without setting out the commission of the court or person before whom the perjury

was committed. If however the prosecutor chuse to state the offence with greater particularity than is required by this statute, he will be bound by the statement, and must prove it as laid. 5 T. R. 317, 311. And the same in every other case, where an offence is stated in an indictment with greater pecularity than is necessary, the unnecessary allegations, if descriptive of some ingredient in the offence, and not merely of circumstances of aggravation, are material and relevant, and cannot be rejected as surplusage.

Having made these general observations on the certainty required in indictments, we shall now proceed to examine the subject with relation to particular cases.

Written instruments, where they form a part of the gist of the offence charged, must be set out verbatim. Thus, in the case of forgery, the instrument forged must be set out in the indictment, in words or figures; 1 East, 180. Leach, 90. 172. 721; in an indictment for a libel, the libellous matter must be set out verbatim ; see 6 T. R. 162; for sending a threatening letter, the letter must be set out verbatim; 2 East, P C. 1123. and see Leach, 631: for not executing a warrant, the nature and tenor of the warrant must be shewn ; 1 Vent. 305. Com. Dig. Indictment, G.3.; so, in an indictment for not obeying the order of Justices of Peace, the order must be set out verbatim. In perjury, it is not necessary to set out the affidavit, answer, &c. on which the perjury is assigned, verbatim, for the stat. 23 G. 2. c. 11, requires only the substance of the offence to be charged; but still it is advisable to set out, verbatim, the passages charged to be false, as it precludes all question of their being in substance the same as the defendant swore. In treason, also, if letters or other written instruments be laid as overt acts, it is sufficient to set forth the substance of them; for the gist of the offence is the compassing, &c. and the overt acts but proofs or evidences of it. Fost. 194. R. v. Preston. 4 St. tr. 411. R. v. Francia, 6 St. tr. 58. 73. In larceny of written instruments, such as bank notes, bills of exchange, &c. it is not necessary the indictment should set them out verbatim; describing them in a general manner is sufficient; 2 East, P. C. 602. 777; thus, "one bank note for the payment of five pounds, and of the value of five pounds;" "one bill of exchange for the payment of fifty pounds, and of the value of fifty pounds," or the like.

Where the instrument must be set out verbatim, if the whole of it be included in the offence, the whole of it must be set out in the indictment; as, for instance, in the forgery of a bill of exchange, &c. And even in the case of the forgery of an indorsement or acceptance merely, still the bill, as well as the indorsement, &c. is always set out, in order to shew that it is an instrument, the forgery of an indorsement or acceptance of which is punishable by the statute.

But

where upon an indictment for forging a receipt, it appeared that the receipt was written at the foot of an account, and the indictment stated the receipt thus, "8th March, 1773. Received the contents above by me Stephen Withers," without setting out the account at the foot of which it was written, it was holden sufficient. 1 East, 181. n. And in all other cases, where part only of a written instrument is included in the offence, that part alone is necessary to be set out. As where some parts of a publication are libellous and others not, it is only necessary to state those parts containing the libel; and if the libellous passages be in different parts of the publication, distinct from each other, they may be introduced thus: "In a certain part of which said libel there were and are contained the false, scandalous, malicious and inflammatory words and matter following, that is to say," &c. "And in a certain other part of which said libel there were and are contained, "&c. See 1 Camp. 350. Where the written instrument or parts of it are thus set out verbatim, great care must be taken to set them out correctly; the slightest variance between the indictment and evidence in this respect, would be fatal, and the prisoner would necessarily be acquitted. A mere literal variance however, (that is, where the omission or addition of a letter does not alter or change a word so as to make it another word, 2 Salk. 661. Cowp. 229) will not be material; as, for instance, "received" for "reicevd," Leach, 145, 2 East, P. C. 977; "undertood" for "understood," Cowp. 229, or the like. Where a libel is in a foreign language, it must be set out in the indictment, first in the language in which it is written, otherwise the defendant may demur, move in arrest of judgment, or bring a writ of error; 6 T. R. 162; and secondly, a translation of it must be set out, and must be proved to be a correct translation at the trial. And the same rule, it should seem, is equally applicable to all cases of written instruments in a foreign language.

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The recital of written instruments, which must be set out verbatim, is usually introduced by the words "according to the tenor following," or of the tenor following," or "in the words and figures following," or "the false, &c. words and matter following," or other words which imply that a correct recital is intended; on the other hand, when the substance only is intended to be set out, it should be introduced by such words as "in substance as follows," "to the effect following," or the like. The word "tenor" implies that a correct copy is set out; and a variance in such a case would be fatal, 2 East, P. C. 976, even although the pleader need not have set out more than the substance of the instrument in that particular case. And the same as to "the words and figures following," or "the words and matter following." The words, Ad tenorem et effectum sequentum, have been holden sufficient, as the word

effectum in such a case may be rejected as surplusage. 2 Salk. 417. 1 Id. 324. 1 L. Raym. 415. The word "effectum" by itself, however, implies that the substance only is set out; 2 Salk. 417; and the same, of course, of the words "in substance as follows." 3 Barn. & Ald. 503. It seems also to have been holden by Buller J. (R. v. May, Leach, 227) that the words "in manner and form following," require the substance only to be set out.

If after the word "tenor" or the like, the instrument be not set forth correctly, the defendant shall be acquitted for the variance, whether the instrument were required to be set out verbatim or not; supra; if, on the other hand, the recital of the instrument be introduced by the words "to the effect following," or "in substance as follows," and the nature of the case require a literal copy to be set forth, the defendant may demur, move in arrest of judgment, or bring a writ of error. See 3 Barn. & Ald. 503.

If an indictment describe a written instrument as purporting to be so and so, the instrument when produced in evidence must appear upon the face of it to be what it is described as purporting to be, otherwise the defendant will be acquitted for the variance; or if the instrument be also set out verbatim in the indictment, the defendant may demur, move in arrest of judgment, or bring a writ of error. As for instance, if the instrument be described as "a certain paper writing purporting to be a bank note," and the note produced, though made to resemble, vary materially in its form from, a real bank note: R. v. Jones, 1 Doug. 300: or if described as a bill of exchange purporting to be directed to one J. King, by the name and description of J. Ring;" for if it were really directed to J. Ring, it could not purport (that is, appear upon the face of it) to be directed to J. King. R. v. Reading, 1 East, 180, n. Leach, 672.

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Where words are the gist of the offence, they must be set forth in the indictment with the same particularity as a libel : as, for instance, in an indictment for scandalous or contemptuous words spoken to a magistrate in the execution of his office; 1 Ro. Rep. 79. 2 Str. 699; or for blasphemous or seditious words, 2 Str. 686. 1 Id. 498. And if there be any material variance between the words proved and those laid,even if laid as spoken in the third person and proved to have been spoken in the second, 4 T. R. 217,-the defendant must be acquitted. But if some of the words be proved as laid, and the words so proved amount to an indictable offence, it will be sufficient. Where words are laid as an overt act of treason, it is sufficient to set forth the substance of them; Fost. 194. R. v. Layer. 8 Mod. 93. 6 St. tr. 328; for they are not the gist of the offence, but proofs or evidences of it merely.

Where any matter laid in an indictment, is to be proved by a record, great care must be taken that the statement corres

pond exactly with the record; for the slighest variance in substance will be fatal. This subject shall be fully considered when we come to treat of the evidence necessary to support an indictment.

Where personal chattels are the subject of an offence, as in larceny, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated: thus, for instance, 66 one coat of the value of twenty shillings, two pair of boots of the value of thirty shillings, two pair of shoes of the value of twelve shillings, two sheets of the value of thirteen shillings, of the goods and chattels of one J. S.;" or one sheep of the price of twenty shillings," &c. and the like. If, for instance, it were "twenty weathers and ewes" the indictment would be bad for uncertainty; it should state how many of each. 2 Hale, 183.

The prosecutor is bound by the description of the species of goods stated; as, for instance, an indictment for stealing a pair of shoes, cannot be supported by evidence of a larceny of a pair of boots. But a variance in the number of the articles or in their value is immaterial, provided the value proved be sufficient to constitute the offence in law. So if there be ten different species of goods enumerated, and the prosecutor prove a larceny of any one or more of a sufficient value, it will be sufficient, although he fail in his proof of the rest.

Money is described as so many shillings, &c. of the current coin of the realm in monies numbered.

Besides what we have hitherto said relative to the certainty required in the statement of an offence in an indictment, it is necessary to add that in an indictment for murder the word murdravit, Dy. 261. a. and in an indictment for rape the word << rapuit," Staund. 96. a. are absolutely necessary; they are technical words essential to the definition of the offence, without which these offences respectively cannot be described upon the record; and if omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error. The words "vi et armis," though usual in indictments for offences against the person, are not essential. 37 H. 8. c. 8.

The intention of the party at the time he committed the offence, is often a necessary ingredient in it: and in such cases it is as necessary to state the intention in the indictment, as any other of the facts and circumstances which constitute the offence. See 6 East, 464. In some cases, the law has adopted certain technical expressions to indicate the intention with which an offence is committed; and in such cases the intention must be expressed by the technical word prescribed, and no other. Thus, treason must be laid to have been done "traitorously;" all felonies to have been done “feloniously ;" petit treason is generally laid to have been done" traitorously and feloniously," in order that if the additional ingredient in the